Monday, November 05, 2012

The Recusal Distraction

By Mike Dorf
Back in 2004, when Justice Scalia was taking some heat for his refusal to recuse himself from a case involving Vice President Cheney's energy policy task force based on their having gone on a duck-hunting trip together, I came to his defense. Here was a key portion of my analysis:

Suppose that Justice Scalia and his friend Vice President Cheney had also been accompanied on their duck-hunting trip by Justice Scalia's friend Justice Ruth Bader Ginsburg. (If you have difficulty imagining Justice Ginsburg duck hunting, imagine the threesome at the opera instead.) Would anyone think that her impartiality would be called into question because of social interaction with the Vice President? Would the Sierra Club have sought her recusal?

Of course not. And why not? Because Justice Ginsburg is, as a matter of judicial philosophy, less prone to accept claims of executive power than Justice Scalia.

The real objection, as everyone who understands what's going on here knows, is not that Justice Scalia went duck hunting with Vice President Cheney. The objection isn't that they're friends, either. The real objection is that Justice Scalia and Vice President Cheney share an approach to executive power that the plaintiffs dislike.

I dislike that approach as well. I also think that killing animals for sport (or food, for that matter), is wrong. But I don't see how either of those substantive views I hold counts as a basis for recusing Justice Scalia.

I find myself in roughly the same place when thinking about the controversies over the last couple of years involving recusals and non-recusals by Justices Kagan and Thomas. The latest episode involves the question of whether Justice Kagan will have to recuse herself from a case challenging the Defense of Marriage Act (DOMA), if and when one reaches the Court. As explained in this helpful piece by Lyle Denniston on SCOTUSblog, whether Kagan recuses apparently will depend on which (if any) of several pending certiorari petitions the Court grants. If the Court takes a First Circuit case she's out; if the Court takes a Second Circuit case, she's in.

Let's assume that Kagan is correctly applying the relevant standard: Direct participation in a case as a lawyer calls for recusal when the case arises before the same person once she has become a judge, but does not require recusal from a case presenting the same (or nearly the same) issues in another case. Does that standard make any sense as applied to a Supreme Court Justice who was formerly Solicitor General? I think not.

To be sure, there are circumstances in which the standard is sensible. Suppose that Lawyer X represents the incumbent managers and board of directors of the Acme Corporation against a shareholder derivative action challenging some allegedly fraudulent financial statement. Then X is appointed to the bench and that very lawsuit against Acme is randomly assigned to Judge X. Obviously X should recuse herself. And equally obviously, Judge X need not recuse herself in all future litigation alleging fraud by other managers and directors of other companies. We would legitimately worry that X's work as a lawyer for Acme on this particular case creates a bias, or at least the appearance of a bias, for Acme's managers and directors. But future cases involving the same or similar legal issues with respect to other defendants would not fall within that bias. And this would be true even if, as a result of X's representation of Acme, X had developed views about the circumstances under which shareholder derivative suits ought to succeed against corporate managers and directors. Indeed, we might even imagine that one reason Lawyer X was named to the bench was to bring some of her expertise in corporate and securities law to the judiciary.

However, Justice Kagan's circumstances look quite different. As the Solicitor General peripherally involved in defending DOMA, she may have developed a residual bias for the government. But if so, surely that would be a bias for the government's interest in defending DOMA, not a bias for the government's interest in defending DOMA in Massachusetts (First Circuit) but not in Connecticut (Second Circuit). If we think about this issue by analogy to my hypothetical derivative suit, we might imagine that Judge X is asked to adjudicate a new lawsuit alleging fraud by the same managers and directors of Acme that X formerly represented. If we worry about the appearance of impropriety in the original hypothetical case, we would likely worry about the same appearance in another case against Acme involving similar allegations. So if Justice Kagan needs to recuse herself from a First Circuit DOMA case based on party bias, she should have to recuse herself from all such cases based on party bias.

But if the worry is party-based, then why stop at DOMA cases? Shouldn't Justice Kagan have to recuse herself in all cases in which the U.S. government is a party? Of course not. If that were the rule, then no former SG--or government lawyer--could become a Supreme Court Justice. Only two current Supreme Court Justices (Kennedy and Ginsburg) were not federal executive branch lawyers at some point in their career. Hence recusal based on the appearance of loyalty to a past client cannot possibly be a basis for recusal of a Supreme Court Justice who formerly represented the federal government.

So if the worry is not that a current Justice developed loyalty based on party, it must be that he or she developed a bias based on the subject matter. Yet that's clearly not the law either--even in the private party case, as we saw with my hypothetical case.

And anyway, the whole notion that Justice Kagan should have to recuse because she developed a bias in favor of upholding DOMA in virtue of her work as SG is ridiculous. There is simply no plausible scenario in which the Supreme Court votes to strike down DOMA but Justice Kagan dissents.

Now, to be fair, one reason for recusal is that an unrecused judge might bend over backwards to avoid showing bias against a former client, and thus unfairly disfavor her former client. But that's also quite unrealistic here. As with Justice Scalia's participation in the Cheney case, everybody understands that whatever druthers Justice Kagan may have relate to her views about how best to interpret the Constitution, not any bias developed (or perceived to have been developed) as SG.

9 comments:

Very interesting. If I'm following your logic correctly, you are doing one of two things: (1) You reject "party bias," so that it would be OK for your hypo's judge to hear cases against his former clients, or (2) You reject "party bias" for cases involving the federal government, because that's simply too broad. I think you're saying the latter, but I might be misunderstanding. If it is the latter, is this a category of one, or are there other parties that are so large that they would not call for party-based recusal?

Definitely (2). I.e., I think the former Acme lawyer must recuse from all cases in which Acme is a party--at least for a period of years. (We might imagine that the bias would attenuate, although I don't know exactly what the rules of judicial ethics--which apply to lower court judges but not the Supremes--say.) As for the feds, it's partly a function of size, but not just size. So I would treat WalMart just like Acme, despite WalMart's size. My view is rather that working for the federal government does not create a discernible bias. It's possible that the same would be true for other clients (e.g., state govts). I explored a related theme in a 2007 article in the Harvard Law & Policy Review: http://tinyurl.com/adbzcsh

Justice Curtis' brother was on the Dred Scott team. Today, if a brother or son of the a justice argued a case, would the justice ethically be required to recuse? I recall a case where Breyer's brother (a judge) decided the case below and Breyer recused himself (apparently for that reason, but maybe not).

In your column, you suggested Kagan should not have recused in the ACA case. As to the ACA case, Kagan

1) Headed the office that worked on the case in the lower courts;2) Was asked by her deputy if her office should work on the case in the lower courts;3) Celebrated the law’s passage with Professor Tribe;4) And the gov’t claimed attorney client privilege as to FOIA requests about her personal participation in the case.

Moreover, the fact that she choose the ACA case and only the ACA case to build a Chinese Wall around herself (though there is no writing to confirm that) also suggests to me she should have recused. Why that case and that case only. She did recuse in Fisher and the Arizona Immigration case. What was in her mind when she told Katyal keep me out of the ACA litigation (though I am not sure that even matters given she was his direct boss), that would not lead to recusal. Was she thinking: “I want to vote on that case and that case only so that is the only case I won’t work on as SG.”

I know almost no one on our side else agrees but Kagan should have recused.

In response to Eric: You seem to be saying that Justice Kagan made the wrong call on the ACA case, under the existing recusal standards. Maybe, maybe not. I don't have a view about whether any particular Justice's participation in some case while a government lawyer might be so substantial that he or she ought to recuse based on that prior participation when that case (or a case raising similar issues) reaches the Supreme Court--under existing standards. My point is that the existing standards, which treat prior participation as the ne plus ultra of conflict, are misguided. As you yourself have argued in your recent book, we know how Justices are going to vote (mostly) based on their ideological views. Prior work as a government lawyer adds virtually nothing to that "bias."

Fair enough and thanks for the book plug though I didn't argue that "we know how Justices are going to vote (mostly) based on their ideological views," though I do beleive that. I argued that Supreme Court Justices don't take prior law (text and precedent) seriously enough to warrant the label "judges," but that argument takes us far afield other than to note that I think Kagan did nothing to disprove the thesis by failing to recuse in the ACA case.

Why should it matter that Kagan personally celebrated the law's passage with Prof. Tribe? Is celebration of a law passing a disqualification?

#1 and #2 also seems a bit redundant. What does #2 really add to #1?

As to singling out one law, it's size seems relevant. What is the USSC going to do, in effect be deadlocked repeatedly on such a major piece of national legislation? A single affirmative action law or state immigration case can be deadlocked with less of a burden. If she was thinking that she wanted to vote on that matter, so what?

As to #4, I'm inclined to disfavor that sort of thing on principle, but such a privilege claim in such seeking of documents in judicial nominations has not be selectively applied. So, we are left with worries her own explanations are not good enough. I'm not sure what info such requests are supposedly going to bring.

I don't think enough was given here to have Kagan recuse and if it's enough, I bet a similarly (weak) case can be given to have Thomas recuse.

Joe, I set forth the complete arguments for Kagan's recusal and against Thomas' here: http://www.pennumbra.com/debates/debate.php?did=46. My argument was based on a cumulative examination of all relevant factors not looking at each individually.

I appreciate the link since the four factors, however weighed, don't do it for me. The link provides a more detail "no sale" argument, but it's appreciated all the same. A Scalia-like opinion on recusal very well might be helpful, particularly since I continue to support Prof. Kagan's old support of openness in judicial matters.